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Court upholds levy against leaseholders

by
Martin van den Hemel - Richmond Review

posted Dec 11, 2012 at 4:00 PM— updated Dec 11, 2012 at 6:13 PM

The B.C. Supreme Court has rejected the arguments from lawyers representing residents of Sussex Square, who claimed that the management company in charge of their condo complex’s maintenance was ultimately to blame for the multi-million repair bill resulting from water damage.

Madam Justice Miriam Gropper ruled that the defendants, many of whom signed 99-year leases to live at the property near Granville and Railway, must pay an outstanding sum of $1.889 million to the owners and managers of the property, Westsea Construction Ltd., Capital Construction Supplies Ltd. and Sussex Square Apartments Ltd.

The residents claimed that Westsea was in charge of the building’s maintenance, and that they ought to have known about rain water leak issues in what during the 1990s became known as “leaky condo” syndrome. Billions of dollars in damage to thousands of Lower Mainland condos resulted from rainwater entering the exterior walls of woodframe multi-family condos, causing the wood to rot and toxic mould to grow.

Gropper found:

• “there was no evidence of water ingress until 2009, in spite of the experts’ view that water ingress has likely occurred from the date of the completion of construction.”

• “the design and construction of the buildings at Sussex Square met the standard of care that was required as of the time they were built.”

• “the plaintiffs did not fail to maintain and repair the buildings over the years.”

• “the plaintiffs did not underfund the contingency reserve fund.”

• “the defendants are bound by the terms of the contractual terms to pay for the assessed costs owed.”

The Review first reported on the plight of residents who purchased units at Sussex Square, many of whom were retirees unable to afford the massive repair assessment they were facing.

In 2010, after repairs to exterior stairways and landings were completed, a building envelope inspection was commissioned, and came to the conclusion that $2.4 million worth of repairs were needed.

But the residents claimed Westsea was negligent in the way it maintained the complex.

The residents argued that Sussex Square was “improperly designed and constructed, and as a result, it required a comprehensive maintenance program. The defendants allege the plaintiffs knew the buildings were improperly designed and constructed. In view of this knowledge, the plaintiffs ought to have commissioned a building envelope condition assessment by no later than the mid-to-late 1990s.”

But Justice Gropper said she preferred the evidence of expert witness Pierre Gallant, who said Sussex Square was built to the building code in effect at the time, and in “general conformity with standard practice in the early 1970s.”

Gropper added: “There is no reliable evidence that points to the contrary.”

Aside from losing the case, the residents of Sussex Square are also facing the additional bill for litigation as well as an estimated $10.4 million bill for the second phase of repairs at the complex

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